[Federal Register Volume 59, Number 203 (Friday, October 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26152]


[[Page Unknown]]

[Federal Register: October 21, 1994]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

 

Wyoming Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendments and removal of condition of 
program approval.

-----------------------------------------------------------------------

SUMMARY: The Secretary of the Interior is announcing the approval of a 
proposed amendment to the Wyoming permanent regulatory program 
(hereinafter, the ``Wyoming program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act), and the removal of the 
remaining condition of program approval. The amendment addresses the 
recovery of costs and expenses, including attorney's fees, incurred in 
connection with administrative and judicial review proceedings under 
the Wyoming program. The amendment is intended to revise the Wyoming 
program to be consistent with the corresponding Federal standards and 
to clarify State operating procedures.

EFFECTIVE DATE: October 21, 1994.

FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

    On November 26, 1980, the Secretary of the Interior conditionally 
approved the Wyoming program. General background information on the 
Wyoming program, including the Secretary's findings, the disposition of 
comments, and conditions of approval of the Wyoming program can be 
found in the November 26, 1980, Federal Register (45 FR 78637). 
Subsequent actions concerning Wyoming's program and program amendments 
can be found at 30 CFR 950.11, 950.12, 950.15, and 950.16.
    On January 24, 1994, the Secretary of the Interior approved, with 
certain exceptions, amendments to the Wyoming program provisions 
regarding the recovery of costs and expenses, including attorney's 
fees, incurred in connection with administrative review proceedings 
under the Wyoming program. As a result of this decision, the condition 
of program approval at 30 CFR 950.11(c) was modified to require Wyoming 
to revise section 35-11-437 of the Wyoming Statutes (W.S.) to be 
consistent with the Federal requirements at section 525(e) of SMCRA (30 
U.S.C. 1275(e)) and 43 CFR 4.1290 through 4.1295 concerning the award 
of costs and expenses incurred in connection with administrative and 
judicial proceedings (see 59 FR 3513). The amendment under 
consideration in the current rulemaking is intended to satisfy this 
condition.

II. Submission of Amendment

    By letter dated April 13, 1994 (Administrative Record No. WY-27-
01), Wyoming submitted Enrolled Act No. 4, which was adopted during the 
1994 Budget Session of the Wyoming Legislature and signed into law by 
the Governor on March 16, 1994, as a proposed amendment to its 
permanent program. The proposed amendment, which consists of statutory 
changes to the Wyoming Environmental Quality Act (EQA), is intended to 
satisfy the condition of program approval at 30 CFR 950.11(c), as 
modified on January 24, 1994 (59 FR 3513). Enrolled Act No. 4 revises 
W.S. 35-11-437 by (1) amending the introductory language of subsection 
(f) to change the word ``director'' to ``council,'' and add the phrase 
``or subsequent judicial review proceedings''; (2) repealing paragraphs 
(f)(i) and (f)(iii) in their entirety; and (3) repealing subsection (g) 
in its entirety.
    OSM announced receipt of the April 13, 1994, submittal in the May 
2, 1994, Federal Register (59 FR 22571), and, in the same document, 
opened the public comment period and provided opportunity for a public 
hearing on the substantive adequacy of the April 13, 1994, submittal. 
The public comment period closed on June 1, 1994. A public hearing was 
not held because no one requested an opportunity to testify.

III. Secretary's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Secretary's findings concerning the 
proposed amendment submitted by Wyoming on April 13, 1994.

1. Award of Costs and Expenses: Applicability to Judicial Proceedings 
and Administrative Proceedings under EQA Sections Other than W.S. 35-
11-437

    Wyoming Enrolled Act No. 4 revises W.S. 35-11-437(f), the State 
counterpart to section 525(e) of SMCRA, by providing in part that costs 
and expenses (including attorney's fees) incurred by parties in 
connection with a proceeding under the EQA may be assessed against one 
or more of those parties only if the proceeding is a contested case 
proceeding or subsequent judicial review proceeding. In relevant part, 
the revised statute reads as follows:

    At the request of any person, a sum equal to the aggregate 
amount of all costs and expenses (including attorney's fees) as 
determined by the council to have been reasonably incurred by the 
person for or in connection with his participation in the 
proceeding, including any judicial review of agency actions, may be 
assessed against either party as the court or the council deems 
proper. This subsection shall apply only to contested case 
proceedings or subsequent judicial review proceedings under the 
provisions of this act relating to the regulation of surface coal 
mining and reclamation operations in accordance with P.L. 95-87, as 
the law is worded on August 3, 1977.

    In the decision announced in the January 24, 1994, Federal 
Register, the Secretary did not approve the introductory clause of the 
first sentence of W.S. 35-11-437(f) (``Whenever an order is issued 
under this section,''), the words ``only'' and ``administrative'' in 
the second sentence of this subsection (``This subsection shall apply 
only to administrative contested case proceedings * * *''), and 
paragraph (i) of this subsection (``The issues resolved in the 
contested proceeding are those in the original complaint that were 
raised within the statutory time frames under W.S. 35-11-406(p) or 
within an enforcement action''). In concert with this action, the 
Secretary modified the condition of program approval at 30 CFR 
950.11(c) by adding paragraphs (1) and (2) to require Wyoming to 
clearly authorize the award of costs and expenses incurred in 
connection with participation in (1) judicial review proceedings 
concerning agency actions, and (2) with respect to awards from the 
State, any administrative contested case proceedings under the approved 
program, not just proceedings concerning enforcement actions under W.S. 
35-11-437 or actions taken under W.S. 35-11-406(p). (See findings 3 and 
6, 59 FR 3915-17, January 24, 1994.)
    The current submittal repeals paragraph (f)(i) and the disapproved 
introductory clause discussed above and modifies the remainder of W.S. 
35-11-437(f) to clarify that this subsection applies to contested case 
proceedings and subsequent judicial review proceedings under any SMCRA-
related provisions of the EQA, not just enforcement actions under W.S. 
35-11-437 or proceedings pursuant to W.S. 35-11-406(p). Therefore, the 
Secretary finds that the State has satisfied the requirements of 30 CFR 
950.11(c) (1) and (2). Accordingly, he is approving the proposed 
amendment and removing 30 CFR 950.11(c) (1) and (2).

2. Award of Costs and Expenses: Eligible Issues [W.S. 35-11-437(f)(i)]

    Wyoming Enrolled Act No. 4 revises W.S. 35-11-437(f) by repealing 
paragraph (i), which provided a participant in a proceeding is eligible 
to receive an award of costs and expenses from the State only if the 
issues resolved in the contested proceeding were raised in the original 
complaint and within the statutory timeframes of W.S. 35-11-406(p) or 
within an enforcement action.
    As discussed in finding 3 of the January 24, 1994, Federal Register 
document (59 FR 3515-16), the Secretary did not approve the now-
repealed provision because he found it to be inconsistent with section 
525(e) of SMCRA and 43 CFR 4.1290 through 4.1295. In addition, the 
Secretary modified the condition of program approval at 30 CFR 
950.11(c) by adding a paragraph (3), which, in part, required that 
Wyoming revise its statute to remove the provision limiting awards to 
expenses incurred in connection with proceedings involving issues 
raised in the original complaint.
    The Secretary finds that Wyoming's repeal of W.S. 35-11-437(f)(i) 
satisfies the portion of 30 CFR 950.11(c)(3) discussed above. 
Therefore, he is approving the proposed amendment and removing the 
pertinent portion of the program condition.

3. Award of Costs and Expenses: Cap on Fees and Costs [W.S. 35-11-
437(g)]

    Wyoming Enrolled Act No. 4 revises W.S. 35-11-437 by repealing 
subsection (g), which provided that attorney's fees, expert witness 
fees or other fees or costs shall not exceed $50.00 per hour.
    As discussed in finding 7 of the January 24, 1994, Federal Register 
document (59 FR 3517), the Secretary did not approve the now-repealed 
provision because he found it to be inconsistent with section 525(e) of 
SMCRA. In addition, he modified the condition of program approval at 30 
CFR 950.11(c) by adding a paragraph (3), which, in part, required that 
Wyoming revise its statute to authorize the award of all reasonably 
incurred costs and expenses without placing any inflexible limits on 
the meaning of ``reasonably incurred.''
    The Secretary finds that Wyoming's repeal of W.S. 35-11-437(g) and 
its hourly rate cap satisfies the portion of 30 CFR 950.11(c)(3) 
discussed above. Therefore, he is approving the proposed amendment and 
removing the pertinent portion of the program condition.

4. Award of Costs and Expenses: General [W.S. 35-11-437(f)]

    Wyoming Enrolled Act No. 4 revises W.S. 35-11-437(f) by replacing 
the term ``director'' in the phrases ``as determined by the director'' 
and ``as the court or director deems proper'' with the term 
``council.''
    As discussed in finding 1 of the January 24, 1994, Federal Register 
document (59 FR 3514), the Secretary did not approve W.S. 35-11-437(f) 
to the extent that it referred to ``the Director'' rather than ``the 
Council'' (the State's administrative review entity) because he found 
it to be inconsistent with 43 CFR 4.1291. In addition, he modified the 
condition of program approval at 30 CFR 950.11(c) by adding a paragraph 
(4), which required that Wyoming revise its statute to clarify that, 
with respect to administrative review proceedings, petitions for awards 
of costs and expenses must be filed with and reviewed and decided by 
the Environmental Quality Council, not the Director of the Department 
of Environmental Quality.
    The Secretary finds that Wyoming's revisions to W.S. 35-11-437(f) 
satisfy the requirements of 30 CFR 950.11(c)(4). Therefore, he is 
approving the proposed amendment and removing the pertinent portion of 
the condition of program approval.

5. Award of Costs and Expenses: Requirement for Establishment of 
Existence of Violation [W.S. 35-11-437(f)(iii)]

    Wyoming Enrolled Act No. 4 repeals W.S. 35-11-437(f)(iii), which 
allowed the award of costs and expenses from the State only if the 
person claiming eligibility for such an award establishes the existence 
of a specific violation of an applicable statute or rule.
    As discussed in finding 5 of the January 24, 1994, Federal Register 
decision document (59 FR 3516), the Secretary did not approve W.S. 35-
11-437(f)(iii) because he found it to be inconsistent with section 
525(e) of SMCRA and the Federal regulations at 43 CFR 4.1294(b). In 
addition, he modified the condition of program approval at 30 CFR 
950.11(c) by adding a paragraph (5), which required that Wyoming revise 
its statute to eliminate the requirement that the person establish the 
existence of a specific violation of applicable statute or rule as a 
prerequisite for awards from the State.
    The Secretary finds that Wyoming's repeal of W.S. 35-11-437(f)(iii) 
satisfies the requirements of 30 CFR 950.11(c)(5). Therefore, he is 
approving the proposed amendment and removing the pertinent portion of 
the condition of program approval.

IV. Summary and Disposition of Comments

Public Comments

    OSM announced receipt of the April 13, 1994, submittal in the May 
2, 1994, Federal Register (59 FR 22571), and, in the same document, 
opened the public comment period and provided opportunity for a public 
hearing on the substantive adequacy of the April 13, 1994, submittal. 
The public comment period closed on June 1, 1994. A public hearing was 
not held because no one requested an opportunity to testify.
    Written comments were received from the Powder River Basin Resource 
Council (PRBRC) (Administrative Record No. WY-27-12). A summary of 
these comments and their disposition is set forth below:
    1. PRBRC expressed concern that the wording of the phrase ``may be 
assessed against either party as the court or the council deems 
proper'' in W.S. 35-11-437(f) is too broad. The commenter stated that 
it should be limited by adding the clause ``in conformity with 43 CFR 
4.1290 through 4.1295.'' In addition, PRBRC stated that the phrase 
``and shall include all classes of actions in which participants would 
be eligible for an award of costs and expenses under 43 CFR 4.1290 
through 4.1295'' should be inserted after ``in accordance with P.L. 95-
87'' in W.S. 35-11-437(f) to clarify the classes of actions in 
connection with which participants would be eligible for awards of 
costs and expenses.
    The Secretary does not agree that the suggested additional language 
is either necessary or proper. The statutory language adopted by 
Wyoming is substantively identical to and therefore consistent with 
section 525(e) of SMCRA, which also contains an unmodified ``deems 
proper'' standard. Furthermore, the Wyoming Department of Environmental 
Quality's Rules of Practice and Procedures contain counterparts to 43 
CFR 4.1290 through 4.1295. On January 24, 1994, OSM approved these 
Wyoming Rules as being consistent with the Federal rules cited by the 
commenter (see 59 3515). Therefore, no further statutory revisions are 
needed.
    2. PRBRC opposes deletion of the word ``administrative'' in the 
phrase ``shall apply only to administrative contested case 
proceedings'' in W.S. 35-11-437(f). The commenter argues that the term 
``contested case'' should be deleted instead.
    The Secretary does not agree. As discussed in finding 2 of the 
January 24, 1994, decision document (59 FR 3515), the Secretary found 
use of the term ``contested case'' to be consistent with section 525(e) 
of SMCRA and its implementing regulations, as interpreted by case law. 
Deletion of the adjective ``administrative'' merely eliminates a 
redundancy since Wyoming's Administrative Procedure Act, at W.S. 16-3-
101(b)(ii), effectively defines ``contested case'' as an administrative 
proceeding other than rulemaking. Finally, the January 24, 1994, 
decision document states that the Secretary's approval is predicated 
upon Wyoming's interpretation of the term contested case as including 
all classes of actions in which participants would be eligible for an 
award of costs and expenses under 43 CFR 4.1290 through 4.1295. 
Therefore, there is no need to make the changes sought by the 
commenter.
    3. PRBRC expressed concern that the clause ``as the law is worded 
on August 3, 1977'', which modifies the phrase ``in accordance with 
P.L. 95-87'' in W.S. 35-11-437(f), may cause the State law to become 
less stringent than SMCRA as the Act evolves. The Secretary finds that 
this concern is misplaced. Under 30 CFR 732.17(d), the Director of OSM 
must promptly notify the State of any changes in SMCRA that will 
require an amendment to the State program.
    4. PRBRC objected to the provision in W.S. 35-11-437(f) which 
specifies that a person who did not initiate a proceeding may receive 
an award of costs and expenses from the State only if that person's 
contribution is separate and distinct from the contribution made by the 
person initiating the proceeding. The commenter stated that this 
provision could cause confusion and could be interpreted as being 
additive to the requirement that the person make a substantial 
contribution to a full and fair determination of the issues. As 
discussed in finding 4 of the January 24, 1994, decision document, the 
Secretary previously approved this provision, noting that the 
``separate and distinct'' requirement is an implicit component of the 
``substantial contribution'' requirement, and is not inconsistent with 
section 525(e) of SMCRA or its implementing regulations (see 59 FR 
3516).

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and its implementing 
regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from 
various Federal agencies with an actual or potential interest in the 
Wyoming program. None of these agencies provided any objection to 
approval of the submittal.

State Historic Preservation Office (SHPO) and Advisory Council on 
Historic Preservation (ACHP) Comments

    As required by 30 CFR 732.17(h)(4), OSM provided the submittal to 
the SHPO and ACHP for comment. No comments were received.

Environmental Protection Agency Concurrence

    Under 30 CFR 732.17(h)(11)(ii), OSM must obtain the written 
concurrence of the Administrator of the U.S. Environmental Protection 
Agency (EPA) before approving any provisions of a proposed State 
program amendment that relate to air or water quality standards 
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the 
provisions of this proposed amendment relate to air or water quality 
standards. Hence, no concurrence is needed.

V. Secretary's Decision

    Based on the above findings, the Secretary is approving Wyoming's 
proposed program amendment as submitted on April 13, 1994. Because this 
amendment fully satisfies the requirements of the condition of program 
approval at 30 CFR 950.11(c), he is also removing this condition.
    The Federal regulations at 30 CFR part 950 codifying decisions 
concerning the Wyoming program are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Compliance with Executive Order 12866

    This final rule is exempt from review by the Office of Management 
and Budget under Executive Order 12866 (Regulatory Planning and 
Review).

Compliance with Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR 
730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the requirements of 30 CFR Parts 730, 731, and 732 have been 
met.

Compliance with the National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Compliance With the Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Hence, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 950

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 14, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T, part 950 of the Code of Federal Regulations is amended as 
set forth below.

PART 950--WYOMING

    1. The authority citation for part 950 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.


Sec. 950.11  [Removed]

    2. Section 950.11 is removed.
    3. Section 950.15 is amended by adding paragraph (u) to read as 
follows:


Sec. 950.15  Approval of regulatory program amendments.

* * * * *
    (u) The following amendment, as submitted on April 13, 1994, is 
approved effective on October 21, 1994: Wyoming Enrolled Act No. 4 
(1994 Budget Session), which concerns the award of costs and expenses 
incurred in connection with administrative and judicial review 
proceedings. The Act contains revisions to section 35-11-437(f) of the 
Wyoming Statutes and repeals section 35-11-437(g).

[FR Doc. 94-26152 Filed 10-20-94; 8:45 am]
BILLING CODE 4310-05-M